1 The claim in this suit arose directly out of the worldwide demand for, coupled with the shortage of, gloves after the onset of the Covid-19 pandemic (“the pandemic”) in early 2020.

2 2253 Apparel Inc (“the plaintiff”) is an American company situated in Montebello, Los Angeles County, California state and its business is in wholesale clothing. The plaintiff’s chief executive officer is Doron Kadosh (“Kadosh”). ¹

3 Medico Titan Pte Ltd (“the defendant”) is a Singapore company incorporated in April 2020. The defendant operates as a middleman for buyers and manufacturers of personal protection equipment (“PPE”) including SKYMED nitrile gloves (“the Gloves”). In or about November 2020, the defendant progressed to manufacturing and distributing its own “Medico Titan” brand of PPE products to meet demands resulting from the worldwide shortage caused by the pandemic. The defendant’s sole director and shareholder is Njoto Danastri Sahita @ Njoo Soen Hwa (“Dan”). ²

4 The facts set out below are extracted from the written testimony of the witnesses called by the parties for the trial, in particular from the affidavits of evidence-in-chief (“the AEICs”) of Kadosh and Dan.

5 According to Dan, the defendant was appointed by the Gloves’ Thai manufacturer Sufficiency Economy City Co Ltd (“Sufficiency Economy”) as its official representative on 13 June 2020 ³ and later as an official reseller on 25 June 2020 ⁴ of the Gloves, for one year until June 2024. The defendant would in turn then seek buyers for the Gloves. Both agreements will henceforth be referred to collectively as the “Sufficiency Economy-Defendant Agreements”.

6 One such buyer of the Gloves was a Malaysian public company called Faylez Berhad (“Faylez”) which was incorporated in July 2006. Faylez was/is in the business of trading and/or supplying medical products. ⁵ The President of Faylez is one Dr Hasliza Ozcan (“Dr O”). ⁶

7 Dan was introduced to Dr O in June 2020 as a potential wholesale customer. The defendant officially appointed Faylez as an authorised reseller of the Gloves by a letter of appointment dated 23 June 2020 ⁷ (“Faylez’s letter of appointment”) which appointment would expire in June 2021.

8 On 9 July 2020, the defendant and Faylez signed an agreement whereby the defendant sold 900 million boxes of the Gloves to Faylez (“Faylez Agreement”) ⁸ at a price of US$6.20 per box for a total consideration of US$5,580,000,000 (“Faylez’s purchase price”). Upon signing, Faylez was required under clause 3 of the Faylez Agreement to pay a deposit to the defendant of 30% of Faylez’s purchase price amounting to US$1,674,000,000 (“Faylez’s deposit”).

9 Faylez’s deposit was to be paid into the defendant’s Singapore bank account with Standard Chartered Bank under account no. xxxxxx198 (“the Defendant’s SCB account”).

10 On or about 13 July 2020, Dr O informed Dan that Faylez had a possible buyer for the Gloves whose details she did not provide. She inquired as to the length of time required for the Gloves to be delivered to Faylez’s buyer.

11 It was only on or about 15 July 2020 that Dan found out that Faylez’s buyer was a Malaysian company based in Kuala Lumpur called Ikarl Global Sdn Bhd (“Ikarl”). Dan obtained this information from documents that Dr O sent to him which included: ⁹

(a) an offer letter dated 14 July 2020 (expiring on 17 July 2020) from Faylez to Ikarl (“Faylez’s offer letter”) to sell to the latter 30 million of boxes of the Gloves at US$6.65 per box for a total consideration of US$199,500,000 (“Ikarl’s purchase price”);

(b) an irrevocable confirmed purchase order dated 14 July 2020 (“Ikarl’s PO”) issued by Ikarl to Faylez confirming the purchase of 30 million boxes of the Gloves to be manufactured in Thailand, at Ikarl’s purchase price; and

(c) a purchase order which Faylez in turn issued to Ikarl (“Faylez’s PO”) on 15 July 2020, confirming Ikarl’s PO.

12 Under the terms of Faylez’s offer letter referred to in [11(a)], Ikarl had to pay a commitment fee of RM1,000,000 to Faylez immediately after counter-signing Faylez’s offer letter. Payment of the balance of Ikarl’s purchase price to Faylez was to be by three instalments staggered over July and August 2020. Further, Faylez required Ikarl to pay 30% of Ikarl’s purchase price amounting to US$59,850,000 by wire transfer to the defendant, followed by wire transfer of 20% amounting to US$39,665,368.30 to Faylez.

13 As the defendant’s sale price to Faylez for the Gloves was US$6.20 per box, Faylez’s sub-sale to Ikarl at US$6.65 per box would have reaped Faylez a profit of US$0.45 per box or US$13,500,000 for 30 million boxes, a handsome profit indeed for a party acting purely as a middleman.

14 On his part, Dan affirmed in his AEIC ¹⁰ that he knew nothing about Ikarl, and has never dealt with the company or spoken to the company’s shareholders and/or directors. Neither did Dan suggest to Faylez that Dr O should instruct Ikarl to make payment of the 30% deposit under the Faylez offer letter to the defendant. Dan surmised that Faylez imposed this condition on Ikarl to reduce its own burden of having to make the 30% down payment to the Defendant pursuant to clause 3 of the Faylez Agreement. ¹¹

15 Shortly after the Faylez Agreement was signed, Dan was informed by Dr O that she had a downstream buyer for the Gloves which was an American entity. Dan knew nothing of this American buyer as he was not told by Dr O, nor did Dan know how the American buyer was related Faylez’s offer letter, Ikarl’s PO or Faylez’s PO.

16 It was only in Kadosh’s affidavit filed on 2 April 2022 in support of the plaintiff’s injunction application that Dan subsequently saw a copy of Ikarl’s own pro-forma invoice no. IGSB/2253INC/007/2020 dated 14 July 2020 issued to the plaintiff (“Ikarl’s invoice”). ¹² It was noted therefrom that Ikarl had on-sold to the plaintiff 500,000 boxes of the Gloves (“the plaintiff’s order”) at US$6.65 per box (“the plaintiff’s purchase price”) FOB Thailand. In his AEIC, ¹³ Dan affirmed he knew nothing about Ikarl’s invoice nor was he involved in the negotiations, and he did not know how the terms therein came about. The defendant had never dealt with the plaintiff before this dispute. Dan stated he did not suggest to Faylez or Ikarl (or to their respective directors and/or shareholders) to incorporate the 30% deposit term under clause 3 of the Faylez Agreement into Ikarl’s invoice.

17 Dan noted that the 30% deposit in Ikarl’s invoice matched Faylez’s terms of sale in Faylez’s offer letter and in Ikarl’s PO. In his AEIC, ¹⁴ Dan described the defendant as an upstream supplier, with the plaintiff as a downstream buyer (which the plaintiff disputed), of the Gloves with Faylez and Ikarl as the parties in between in the chain of contracts. The various parties’ standing in the chain can be seen in the following diagram that Dan produced in his AEIC:

It is noted from the above diagram that there is no direct contractual linkage between the plaintiff and the defendant.

18 The plaintiff’s version of the facts involved as set out below are extracted from the AEIC of Kadosh and the plaintiff’s second witness, Robert Allen Mckelvey (“Mckelvey”).

19 Kadosh confirmed ¹⁵ that he had agreed with Ikarl’s representative Kamarul Hisham Bin Kamarudin (“Hisham”) and Dr O that a sum of US$997,500 (“the 30% deposit”) would be remitted to the defendant’s SCB account. The 30% deposit was remitted by the plaintiff on 19 July 2020. Kadosh added that after the remittance was made, Dan had informed Dr O that the funds had been received.

20 Under the terms of Ikarl’s invoice, ¹⁶ the plaintiff’s order was scheduled to leave Thailand on 5 August 2020. However, there was a delay and the plaintiff was advised that delivery to the freight forwarder of the plaintiff’s order would take place on 31 August 2020 instead and shipment would follow on 11 September 2020.

21 The plaintiff received an invoice from Ikarl to prepay US$10,154 for freight (“the freight payment”). According to Kadosh’s statement in his AEIC, he had made the freight payment on behalf of the plaintiff on 30 August 2020. ¹⁷ However, Kadosh’s statement in his AEIC is incorrect. The payment document he exhibited in his AEIC reflected that a credit transfer to NCL International Logistics PCL of the freight payment on 31 August 2020 was effected by Mckelvey through a Hong Kong company called JMG H.K. Limited (“JMG”). ¹⁸

22 Kadosh’s AEIC exhibited a copy of the bill of lading dated 12 September 2020 (“the Bill of Lading”) ¹⁹ for the vessel MSC Mirja V.QLO37N (“the vessel”) that the plaintiff subsequently received from Ikarl. It showed the plaintiff as the consignee of one container of 30,000 boxes of the Gloves. The Bill of Lading showed the exporter/shipper to be Paddy The Room Trading Co Ltd and the notify party to be Walsh C.H.B. Inc, RDBA Walsh International. 189, Sunrise. Highway, Suite 202, Rockville Centre, NY 11570 USA. Kadosh deposed that the plaintiff contacted Mediterranean Shipping Company (“MSC”) to seek confirmation that the plaintiff’s container was on board the vessel; MSC confirmed it was.

23 There was another bill of lading issued for the plaintiff’s cargo. Strangely, this second bill of lading dated 11 September 2020 showed the consignee as well as notify party of the container of 30,000 boxes of the Gloves to be another company called Zev Supplies USA (“Zev Supplies”) of 3020 NW 27th ST, Fort Lauderdale, Florida 33319, USA.

24 Kadosh deposed that the plaintiff attempted to contact the defendant several times without success. The plaintiff made inquiries of SCB and was informed that it had similarly received no response. Kadosh believed that the 30% deposit remained with the bank.

25 Earlier (at [21] above), the court had alluded to JMG and Mckelvey. Mckelvey is a resident of Bangladesh and is the vice-president of JMG which is in the business of manufacturing jeans and other garments. Mckelvey deposed that JMG has acted as the plaintiff’s sourcing agent since 7 December 2019 by a memorandum of understanding made between the parties.

26 In April 2020, Kadosh informed Mckelvey that the plaintiff needed 130,000 boxes of nitrile gloves for the US market and requested him to source for them. Mckelvey could not find the product in Bangladesh. He looked elsewhere and was informed by an associate that Ikarl was a possible source for the product. Mckelvey spoke to Hisham who confirmed he could supply the gloves.

27 At the plaintiff’s request, Mckelvey ordered 130,000 boxes of gloves for the plaintiff from Paddy The Room Trading Co Ltd (“Paddy”) at a cost of US$826,800. The invoice for this order dated 30 June 2020 came from Ikarl. Mckelvey forwarded the invoice to the plaintiff who paid a 50% deposit for the order. Mckelvey deposed that this contract was never honoured and the plaintiff did not receive the gloves it purchased. ²⁰

28 In July 2020, Kadosh informed Mckelvey that the plaintiff needed another 500,000 boxes of gloves. On checking, Mckelvey was informed by Hisham that the defendant could supply the Gloves as it held the licence from the manufacturer and that Dr O of Faylez was the defendant’s sales representative. Mckelvey conveyed the information to Kadosh who requested that he verify the information first before proceeding to make the purchase on the plaintiff’s behalf.

29 On 16 July 2020, Mckelvey emailed Dan via his LinkedIn account with the following message: ²¹

30 Mckelvey received Dan’s following reply to his email:

31 A second message followed from Dan where he wrote:

32 Thereafter, Mckelvey contacted Dr O in regard to the plaintiff’s intended purchase of 500,000 boxes of the Gloves. Dr O confirmed she was the defendant’s representative and was authorised to discuss and finalise the terms of the purchase and sale. She recommended that the plaintiff appoint Ikarl as its agent to formalise the purchase agreements for the Gloves. Dr O added that the plaintiff had to make an advance payment of 30% to the defendant’s SCB account.

33 Mckelvey conveyed the defendant’s emails (in [30]–[31] above) to Kadosh. Kadosh gave him the consent and McKelvey proceeded to discuss and finalise the plaintiff’s order (in [16] above) with Ikarl. Hisham informed Mckelvey that he (Hisham) had discussed the plaintiff’s order with Dr O and he repeated the requirement of a 30% deposit being remitted to the defendant’s SCB account. Mckelvey conveyed the requirement to Kadosh who agreed.

34 After he was informed by Kadosh that the plaintiff had paid the 30% deposit to the defendant’s SCB account, Mckelvey clarified with Dr O who informed him that Dan had confirmed receipt of the sum.

35 Thereafter however, according to the plaintiff, there was complete silence from the defendant, Faylez and Ikarl and no delivery of the plaintiff’s order was made.

36 Prior to remittance of the 30% deposit to the defendant’s SCB account, Mckelvey deposed ²² that the defendant at no time asserted that Faylez was/is the defendant’s reseller.

37 Mckelvey alleged it was only after the plaintiff had commenced HC/S 334/2021 (“this Suit”) that the defendant asserted that Faylez is not its representative. Mckelvey was not aware of, nor had he seen, Faylez’s letter of appointment (in [7] above) prior to the plaintiff’s invoice. He claimed Faylez’s letter of appointment only surfaced after this Suit commenced.

38 It should be noted at this stage that during his cross-examination, ²³ Mckelvey was challenged on his alleged late knowledge (in [37] above) of Faylez’s letter of appointment on two bases. First, in Mckelvey’s own email to Dan on 1 November 2020 ²⁴ prior to commencement of this Suit, he had attached a copy of Faylez’s letter of appointment. Second, in Kadosh’s affidavit filed on 2 April 2021 in support of the plaintiff’s injunction application, Kadosh himself had exhibited ²⁵ a copy of the document.

39 On 9 April 2021, the plaintiff commenced this Suit against the defendant and immediately applied in HC/SUM 1636/2021 for, inter alia, (i) an injunction to restrain the defendant from withdrawing or otherwise dealing with the 30% deposit and the freight payment held in the defendant’s SCB account and (ii) an order that the defendant authorise SCB to return both sums to the plaintiff (“the plaintiff’s injunction application”).

40 On 13 April 2021, this court heard and granted the plaintiff’s application on an ex parte basis, only to the extent of restraining the defendant from withdrawing or otherwise dealing with the moneys (“the injunction order”), with the remaining prayers adjourned to an inter partes hearing. Subsequently, by way of HC/SUM 2150/2021, the defendant applied to set aside the injunction order (“the defendant’s setting-aside application”) at the same time that the plaintiff’s injunction application was to be heard on an inter partes basis.

41 On 27 May 2021, this court heard both applications. The court dismissed the plaintiff’s injunction application and granted (with costs) the defendant’s setting-aside application. No appeals have been filed against either order of court. As the court informed parties at the close of the hearing, the court’s decision was premised on the fact that the plaintiff had sued the wrong party.

42 In its (amended) statement of claim (“SOC”), the plaintiff inter alia alleged that there had been a total failure of consideration for the 30% deposit as the plaintiff did not receive the plaintiff’s order. ²⁶ In the alternative, the plaintiff based its claim on money had and received. In the further alternative, the plaintiff averred that it had paid the 30% deposit and the freight payment as a result of a mistake of fact. ²⁷

43 Additionally, the plaintiff alleged that the defendant, Faylez and Ikarl had conspired to commit fraud on and cause loss to the plaintiff by unlawful means by making use of Ikarl’s invoice. ²⁸ In this regard, the plaintiff alleged that the defendant caused and procured Dr O of Faylez and Hisham of Ikarl to use Ikarl’s invoice to induce the plaintiff to remit the 30% deposit to the defendant’s SCB account. ²⁹

44 In furtherance of the conspiracy, the plaintiff alleged that the defendant, Faylez and Ikarl carried out the following unlawful acts and more: ³⁰

(a) Ikarl’s invoice was issued with Ikarl representing to the Plaintiff that it was market practice to issue an invoice in its own name.

(b) The defendant, Faylez and Ikarl caused the plaintiff to remit the 30% deposit to the defendant when in fact there was no sale and purchase or actual intention to sell the Gloves to the plaintiff.

(c) Dan falsely informed the plaintiff that Dr O of Faylez was the defendant’s representative.

(d) Dan falsely informed the plaintiff that it could deal with Dr O in relation to purchase of the Gloves.

(e) Dr O recommended that the plaintiff appoint Ikarl as the plaintiff’s representative for the purchase of the Gloves.

(f) Ikarl’s invoice was a result of the agreement between the defendant, Faylez and Ikarl.

(g) The defendant’s SCB account was furnished by the defendant.

(h) The requirement of the 30% deposit included in Ikarl’s invoice was a result of communication between the defendant, Faylez and Ikarl.

45 The plaintiff also alleged that the defendant had made false representations to the plaintiff in Dan’s two messages of 16 July 2020 to the Plaintiff at [30]–[31] wherein Dan stated that Faylez was the defendant’s representative. The representation was untrue as the defendant now contends that Faylez is not the defendant’s representative but a buyer. The plaintiff relied on s 2 of the Misrepresentation Act 1967 (2020 Rev Ed) (“Misrepresentation Act”). ³¹

46 The plaintiff’s last cause of action was based on unjust enrichment. It wanted the defendant to refund the 30% deposit and the freight payment as well as loss of sales/profits amounting to US$650,000. No particulars and/or breakdown was furnished for this claim. The court will return to this item of claim later in the judgment (see paras [54]–[55] below).

47 The plaintiff mounted no less than 6 causes of action against the defendant. However, in the course of his cross-examination, ³² Kadosh confirmed that the plaintiff was withdrawing its claim for the freight payment.

48 On its part, the defendant put up a robust defence and denied the plaintiff’s numerous allegations. In its (amended) defence, the defendant:

(a) denied there was a contract between the plaintiff and the defendant; ³³

(b) averred that Faylez was/is the defendant’s authorised reseller of the Gloves and that Dr O is the representative of Faylez; ³⁴

(c) averred it has no contract with Ikarl for the sale of the Gloves, adding that the defendant was an upstream supplier while the plaintiff was a downstream buyer of the Gloves in the chain of contracts between the parties which included the defendant, Faylez, Ikarl and the plaintiff; ³⁵

(d) pointed out that before the material dispute, the defendant was unaware of Ikarl, its directors and shareholders and/or of the plaintiff. At all material times, the defendant was unaware of the details and/or terms of the agreements between Faylez and Ikarl and between Ikarl and the plaintiff; ³⁶

(e) averred that Dr O was not the defendant’s representative; ³⁷

(f) denied that Ikarl was the plaintiff’s agent; ³⁸

(g) averred that it knew Mckelvey was from JMG, not from the plaintiff; ³⁹

(h) averred it was unaware of MSC and Zev Supplies; ⁴⁰ and

(i) averred it did not receive any correspondence from the plaintiff as alleged. ⁴¹

49 The defendant generally denied all the causes of action pleaded by the plaintiff, putting the plaintiff to strict proof of each and every allegation the plaintiff had pleaded.

50 It would not be necessary to address the plaintiff’s (amended) Reply as the averments made therein were largely a repeat of the allegations in the SOC. As for the 30% deposit, the plaintiff pleaded: ⁴²

51 The plaintiff had further pleaded: ⁴³

52 Kadosh’s testimony in his AEIC has already been set out earlier (see [19]–[24] above). It was in his cross-examination that Kadosh admitted that the plaintiff had sued Ikarl in the US (specifically, in the Superior Court of California). Documents relating to the plaintiff’s US proceedings were included in the defendant’s documents. ⁴⁴ In those proceedings filed in Los Angeles County, California, the Plaintiff sued not only Ikarl but also Zev Supplies (see [23] above), Topocean Consolidation Service (Los Angles) Inc (“Topocean”), NCL International Logistics Public Company Limited (“NCL”), Aerolink International Sdn Bhd (“Aerolink”) and DOES 1-10.

53 It was only disclosed by Kadosh during his cross-examination ⁴⁵ that the plaintiff was not the end-buyer in the chain of contracts set out in the diagram at [17]. Apparently, the plaintiff had its own downstream contracts with third parties.

54 In eight purchase orders ⁴⁶ which identified the plaintiff as the vendor, it was noted that the plaintiff had entered into contracts with Hotel Emporium Inc (“Hotel Emporium”) of California to supply cartons of nitrile gloves to the latter. In turn, Hotel Emporium had entered into eight purchase orders with the Home Depot Inc (“Home Depot”) to supply nitrile gloves. ⁴⁷ Home Depot’s purchase orders to Hotel Emporium mirrored the eight purchase orders that Hotel Emporium had issued to the plaintiff. The two sets of purchase orders were on a back-to-back basis. Home Depot is the US’s largest home improvement retailer.

55 Home Depot’s purchase orders showed it paid to Hotel Emporium US$9.70 per box of gloves. The plaintiff’s invoice (at [16] above) stated that its purchase price from Ikarl was US$6.65 per box. The difference was therefore US$3.05 per box. In Hotel Emporium’s purchase orders to the plaintiff, no price was stated for the Gloves but under the column TERMS, the words 50/50 profit appeared. That was the basis for the plaintiff’s claim for loss of profits (see [46] above) which Kadosh said during cross-examination was US$1.25 per box. Even based on US$1.25 per box, the plaintiff’s computation of US$650,000 is incorrect. At US$1.25 per box for the plaintiff’s order, the gross loss of profits should only be US$625,000 not US$650,000 (taking 500,000 boxes x US$1.25).

56 During his cross-examination of Kadosh, counsel for the defendant had pointed out that the plaintiff’s claim for loss of profits of US$650,000 lacked supporting evidence. ⁴⁸ It was only then that Kadosh informed the court that the plaintiff’s loss was US$1.25 per box of the Gloves and that the plaintiff had purchase orders as proof.

57 Just before the plaintiff’s witness from SCB testified, the plaintiff e-filed late on 7 July 2022 its third supplementary bundle of documents containing the purchase orders of both Emporium Hotels and Home Depot. Its counsel then applied on 8 July 2022 ⁴⁹ for Kadosh to be recalled to the witness stand and for those documents to be admitted. ⁵⁰ This application met with strong objections from counsel for the defendant which the court eventually upheld after hearing the parties.

58 Counsel for the defendant as well as the court noted that the purchase orders of Hotel Emporium to the plaintiff were all dated 18 August 2020 whilst those from Home Depot to Hotel Emporium were either dated 1 or 23 July 2020. The writ of summons was filed on 9 April 2021 followed by the (amended) SOC on 22 September 2021 while the AEICs of Kadosh and Mckelvey were both filed on 3 June 2022. The 16 purchase orders came into existence well before the plaintiff’s pleadings and AEICS. The plaintiff had every opportunity to adduce evidence of its loss of profits before the trial but chose not to do so.

59 The court had questioned counsel for the plaintiff on the rule in Ladd v Marshall [1954] 1 WLR 1489. ⁵¹ She could not respond. The three criteria as enunciated by Denning LJ in the English Court of Appeal in Ladd v Marshall (at 1491) to justify the reception of fresh evidence or a new trial are as follows:

(a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(c) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

The plaintiff’s eleventh-hour application to adduce evidence of its alleged loss did not pass the requisite tests in Ladd v Marshall, particularly the third criterion of credibility when the defendant challenged the authenticity of the 16 purchase orders. Consequently, the court rejected the plaintiff’s application (see [57] above).

60 As with Kadosh’s testimony, Mckelvey’s evidence was not particularly helpful. It appeared from his cross-examination ⁵² that it was his Bangladeshi contact, one Mr Jewel, who introduced Mckelvey to Dr O who in turn recommended Hisham of Ikarl to him.

61 Although it was not stated in his AEIC or pleaded by the plaintiff, Mckelvey claimed in the midst of cross-examination that he was present during the telephone conversation ⁵³ between Hisham and Dr O when it was agreed that the 30% deposit would be paid for the plaintiff’s order. ⁵⁴

62 Mckelvey referred to Kadosh’s testimony and said the US proceedings had nothing to do with this suit. That is incorrect. The two sets of proceedings did overlap. The plaintiff sued inter alia Ikarl in the US and the defendant in Singapore over Ikarl’s invoice and in both sets of proceedings referred to its payment of the 30% deposit.

63 After going into the US proceedings for a considerable amount of time during his cross-examination, Mckelvey disclosed that the US proceedings had been discontinued by Kadosh on the basis that the costs were not commensurate with the sum claimed. ⁵⁵ His testimony was again incorrect.

64 The court allowed Kadosh to be recalled as a witness to address the issue of the US proceedings. Kadosh clarified ⁵⁶ that the US proceedings (see [52] above) had not been discontinued against Ikarl, Aerolink, NCL and DOES 1-10. However, he had decided to and claimed he had instructed the plaintiff’s US lawyers overnight to discontinue those proceedings because it made no commercial sense to do so – it was just too expensive. ⁵⁷ However, in the defendant’s closing submissions, ⁵⁸ the defendant pointed out that its searches showed that as at 18 August 2022, the US proceedings had not been discontinued and were still “pending”.

65 The plaintiff had applied for and obtained, dispensation for the filing of an AEIC by SCB’s representative Alice Lee Peck Hoon (“Ms Lee”). Nothing turns on Ms Lee’s evidence. She disclosed that the defendant’s SCB account was closed on 31 May 2022 by SCB for reasons she did not reveal. ⁵⁹

66 Dan was the defendant’s sole witness. Despite repeated cross-examination by the plaintiff, Dan held fast to his AEIC and the defence of the defendant that he had no knowledge of Ikarl, the plaintiff and the dealings between them and Faylez in relation to Ikarl’s invoice.

67 There was no agreed bundle prepared for the trial. Neither side accepted the authenticity of the other party’s documents. On its part, the plaintiff disputed the authenticity of the Sufficiency Economy-Defendant Agreements (in [5] above) and the Faylez Agreement (in [8] above), as well as an unsigned sale and purchase agreement dated 23 June 2020 (“the defendant’s SPA”) ⁶⁰ between the defendant and Sufficiency Economy for the sale of 1.5 billion boxes of the Gloves.

68 Cross-examined ⁶¹ on why the defendant’s SPA was unsigned, Dan explained that the moment he signed the document, the defendant would be committed to the order (for 1.5 billion boxes of the Gloves). Signing the document meant that the defendant would be responsible for payment to Sufficiency Economy. Dan added that the defendant’s SPA related to the Faylez Agreement and he would not sign the same and commit the defendant until Faylez had fully paid the 30% deposit. For the same reason, he did not countersign the quotation ⁶² relating to the defendant’s SPA. He explained he did not have the original documents because the transaction took place during the pandemic at which time he concluded a lot of deals via Zoom or WhatsApp. In any case, he had a representative stationed in Thailand who could go to the office of Sufficiency Economy to negotiate and collect the agreements.

69 Due to the pandemic, Dan testified ⁶³ the Faylez Agreement ⁶⁴ was also concluded online. He identified his and Dr O’s signatures on the copy before the court but said he did not have the original document. The court takes judicial notice of the fact that the document is dated 9 July 2020, at the height of the pandemic when nationwide movement control orders were in effect in Malaysia.

70 As for the documents between Ikarl and Faylez referred to in [11] above, Dan testified ⁶⁵ in answer to the court’s question, that they came into his possession via a WhatsApp chat group when Faylez sent them. The chat group comprised of Dan, Dr O and Dan’s Canada-based business partner, Kevin Tambuweun.

71 The court would point out that there were exchanges from another chat group that were disclosed in these proceedings. The extracts therefrom at exhibit D2 show that the parties to this chat group between 27 and 29 July 2020 were Ikarl, Dr O, Mr Jewel and Mckelvey. In these exhibited exchanges, Dr O had sent Mckelvey the Faylez Agreement as well as the Ikarl PO. When confronted with this in cross-examination, Mckelvey’s only response was to deny the exchanges as being fake. ⁶⁶

72 The only issue the court has to decide is whether the plaintiff through Ikarl contracted with the defendant through Faylez.

73 The court will make some general observations before going into the specifics of this case.

74 First, in relation to the US proceedings, it is telling that the plaintiff made no mention of those proceedings (see [52] above). It was the defendant who discovered those proceedings prior to the exchange of AEICs and produced documents therefrom in this Suit. Kadosh did not mention the US proceedings in his AEIC while Mckelvey in his AEIC ⁶⁷ claimed it had nothing to do with the defendant or Ikarl’s invoice but pertained to the contract signed with Paddy (in [27] above) and which bills of lading (in [22] and [23] above) turned out to be red herrings.

75 It took considerable probing by counsel for the defendant during cross-examination to extract information from Kadosh and Mckelvey on the US proceedings to prove that the plaintiff was indeed suing on Ikarl’s invoice and the plaintiff had not been forthright in that regard.

76 The documents in the US proceedings ⁶⁸ state that the second claim against Ikarl ⁶⁹ related to an agreement entered into on or about 16 July 2020, memorialised by an invoice issued by Ikarl to the plaintiff’s Chinese agent Jiangsu Guotai Litian Enterprise Co Ltd (“Jiangsu”). For this second claim, the plaintiff stated it had paid US$997,500 to Ikarl. During cross-examination, Kadosh disclosed that the Jiangsu agreement was not proceeded ⁷⁰ with, and confirmed that only one deposit of US$997,500 was paid and that was not to Ikarl but to the defendant. ⁷¹

77 The defendant argued in its closing submissions ⁷² that the plaintiff’s claims in the US proceedings and in this Suit are for the same sum of US$997,500 and it has ⁷³ sued different parties (namely Ikarl and the defendant) for breach of the same contract in different lawsuits. The court agrees.

78 It would not be necessary to address the defendant’s lengthy submissions ⁷⁴ on the plaintiff’s inconsistent stand and the principles of approbation and reprobation. Suffice it to say there is no doubt in the court’s mind that the plaintiff’s stand in the US proceedings that it contracted with Ikarl based on Ikarl’s invoice is inconsistent with the stand it takes in this Suit, that it contracted with the defendant. The law frowns on such conduct (see Likpin International Ltd v Swiber Holdings Ltd and another [2015] 5 SLR 962 at [62] cited by the defendant).

79 As far as the testimony adduced is concerned, the court prefers the evidence that was given by Dan to that of Kadosh and Mckelvey. Kadosh would not give straight answers when he realised the answers would be unfavourable to him (see [96] below) while Mckelvey was criticised in the defendant’s submissions as being evasive. ⁷⁵ Dan, on the other hand, came across as candid and forthright and gave reasoned explanations for his conduct (such as not signing the defendant’s SPA) (see [68] above).

80 On the issue of admissibility of the parties’ documents, while Dan was able to testify on the Sufficiency Economy-Defendant Agreements and the defendant’s documents that he signed, the plaintiff’s witnesses could not as the makers (Ikarl and Faylez) were not before the court.

81 The defendant had submitted ⁷⁶ that the court should admit the defendant’s documents under ss 67(1)(a)(ii) and 67(2) read with s 68(2)(f) of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”).

82 Section 67 reads:

83 In the light of the evidence given by Dan at [68]–[69] above, the court admits into evidence the Sufficiency Economy-Defendant Agreements, Faylez’s letter of appointment and the Faylez Agreement under the above provisions of the Evidence Act relied on by the defendant.

84 The defendant’s submissions pointed out that the plaintiff’s case (and its submissions) is premised on the existence of an oral agreement as reflected in Ikarl’s invoice. However as the defendant submitted, Ikarl’s invoice is problematic as it was issued by the plaintiff’s agent to the plaintiff. Hence at best, it evidences an agreement between the plaintiff’s agent and the plaintiff and has nothing to do with the defendant. ⁷⁷

85 Bearing in mind the defendant’s denials in the defence, the burden is on the plaintiff to prove (under s 103 of the Evidence Act) that there was indeed an oral agreement, for which Hisham of Ikarl and Dr O of Faylez were required to testify. However, neither witness came to court. When he was cross-examined ⁷⁸ on whether he had attempted to call them, Kadosh said: ⁷⁹

86 In his cross-examination, it was pointed out to Mckelvey that the plaintiffs had not called Dr O as a witness. ⁸⁰ His response and further exchanges with counsel are as follows: ⁸¹

87 However, in the midst of his cross-examination, ⁸² Mckelvey suddenly claimed that he was present during the teleconference between Dr O and Hisham when the oral agreement was concluded (see [61] above). This testimony was against the entire tenor of his AEIC (in particular paras 16–18) that gave the impression that he was not present. He was either informed by Hisham or he informed Hisham – his usage of these two words strongly suggested the two of them were never together even in a teleconference. Mckelvey’s answers in cross-examination in this regard ⁸³ were highly unsatisfactory and the court rejects without more, his desperate attempt to assist the plaintiff on its lack of evidence vis-a-vis the oral agreement.

88 It bears noting too that Kadosh at no time in his AEIC or in court said McKelvey had met Hisham or Dr O virtually, in regard to the oral agreement. Neither was the fact pleaded in the SOC.

89 Even if Hisham and or Dr O were “frauds” to use Mckelvey’s language, the point to note (as the defendant raised in its closing submissions) ⁸⁴ is that unless the plaintiff had made some attempts to procure their attendance for this trial which attempts were rejected, the court cannot exercise its discretion under s 32 of the Evidence Act to allow the admission of hearsay evidence. In this regard, Mckelvey’s AEIC was replete with hearsay evidence as to what was told to him by Dr O and/or Hisham. This hearsay evidence is inadmissible.

90 With no evidence let alone independent evidence to corroborate the plaintiff’s claim of an oral agreement that was purportedly concluded between Faylez, Ikral and the plaintiff, its claim must fail. There is no document or other evidence to link Ikarl’s invoice to the defendant.

91 In the plaintiff’s closing submissions, it submitted ⁸⁵ that Ikarl’s invoice in [16] was not an agreement as such because it was not signed by the parties. This argument was obviously to circumvent the problem highlighted by the defendant during the cross-examination of Kadosh. ⁸⁶ Kadosh had agreed ⁸⁷ that Ikarl’s invoice dated 14 July 2020 would be the date of the agreement between the plaintiff and Ikarl. The plaintiff’s late disavowal of Ikarl’s invoice as an agreement also flies in the face of Kadosh’s own AEIC where at para 4 he affirmed: ⁸⁸

92 In para 7 of his AEIC, Kadosh stated: ⁸⁹

Notwithstanding the plaintiff’s contention ⁹⁰ that Ikarl’s invoice merely set down the terms of payment to the plaintiff, the plaintiff performed the terms in Ikarl’s invoice by taking steps to remit the 30% deposit to the defendant’s SCB account. It did not wait to sign Ikarl’s invoice. Indeed, there is no term/condition in that document that the plaintiff must countersign Ikarl’s invoice to confirm acceptance.

93 Apart from Ikarl’s invoice, the plaintiff has not produced one iota of evidence or a document or anything else signed by the defendant that pertains to the plaintiff’s order.

94 Although it is not strictly necessary, given the court’s above finding that there is no contract between the plaintiff and the defendant, the court will nonetheless, for completeness, go on to consider the various heads of claim pleaded in the SOC.

95 The court notes the irony -– although the plaintiff refuses to recognise the diagram set out at [17] showing the defendant as the upstream seller with the plaintiff as a downstream buyer, the plaintiff itself expects the defendant/the court to accept its own downstream contracts with Hotel Emporium and Home Depot.

96 In cross-examination, counsel for the defendant had pointed out to Kadosh that the alleged representations made by Dan in his emails to Mckelvey took place on 16 July 2020. Counsel then said to Kadosh: ⁹¹

97 Subsequently, the following exchange took place between Kadosh and counsel for the defendant: ⁹²

Kadosh may feign ignorance or disagree with counsel in his answers in cross-examination, but it does not detract from the fact that even if the defendant’s emails in [30]–[31] were representations, these were post the agreement reached between Ikarl and the plaintiff on 14 July 2020. The representations have no legal effect.

98 This is made very clear by s 2(1) of the Misrepresentation Act that the plaintiff relies on; it states:

Consequently, the plaintiff’s volte-face in its submission set out at [91] does not help the plaintiff to advance its case based on misrepresentation. The claim fails in limine.

99 If arguendo, the representations made on 16 July 2020 were before the conclusion of the agreement between the plaintiff and Ikarl, what did the defendant represent to Mckelvey? As seen from Dan’s messages set out at [30]–[31], at no time did Dan state that Faylez was the defendant’s agent. On both occasions, Dan informed Mckelvey that Faylez Berhad was the defendant’s representative for SkyMed Nitrile Gloves. That was a correct description of Faylez’s role. As Dan said in his AEIC, ⁹³ he used the word “representative” in the context of general commercial practice. In the court’s view, this also accords with a reasonable and objective reading of the statement. If Kadosh and/or Mckelvey chose to read more into the statement than what Dan stated, Dan and/or the defendant should not be blamed for it.

100 At law, an actionable representation or misrepresentation must come from the principal, not the representative or agent. If the plaintiff chose to believe/accept whatever representations Faylez or Ikarl made about the defendant, the latter cannot be held liable. The same legal principle would apply if Faylez held itself out to the plaintiff as the defendant’s agent – the representation that Faylez had ostensible/apparent authority must have come from the defendant to make the defendant liable.

101 Besides misrepresentation, the plaintiff’s other claims were founded on (i) money had and received; (ii) total failure of consideration; (iii) mistake of fact; (iv) unjust enrichment; (v) conspiracy.

102 As the defendant pointed out in its submissions, ⁹⁴ “money had and received” and “total failure of consideration” are not separate causes of action as the former is subsumed under the rubric of “unjust enrichment” (see Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie Handoyo”) at [125]). Similarly, total failure of consideration would come under the cause of action of unjust enrichment.

103 According to Esben Finance Ltd and others v Wong Hou-Liang Neil [2022] 1 SLR 136 (“Esben Finance”), the requisite elements the plaintiff must prove for a cause of action in unjust enrichment are (at [125]):

(a) that the defendant has benefited or been enriched;

(b) the enrichment was at the expense of the plaintiff; and

(c) the enrichment was unjust.

104 According to Dan’s evidence (which he repeated more than once), ⁹⁵ the 30% deposit was paid into the defendant’s SCB account by Faylez pursuant to the terms of the Faylez Agreement which required Faylez to pay US$1,674,000,000 after the agreement was signed. The US$997,500 was only a small fraction of the requisite 30% amount. The court accepts Dan’s testimony as it was corroborated by the terms of the Faylez Agreement. The law does not allow the plaintiff to recover the US$997,500 because it was paid on behalf of Faylez pursuant to the Fayez Agreement with the defendant (see Alwie Handoyo at [104]). It is of no concern to Dan that a third party namely the plaintiff made the payment rather than Faylez.

105 As the Court of Appeal said in Esben Finance (at [250]):

106 The plaintiff cannot therefore (as the defendant submitted) sidestep its contract with Ikarl and claim against the defendant in unjust enrichment. It was absurd of the plaintiff’s counsel to complain ⁹⁶ that the defendant cannot usurp the 30% deposit as the defendant provided no benefit to the plaintiff. The law does not require the defendant, having obtained the money pursuant to a contract with a third party, to then disgorge it to the plaintiff on the basis that the defendant provided no benefit to the plaintiff (see [105] above).

107 Although it would not be necessary for the court to make a finding on the issue, the defendant pointed out ⁹⁷ that the plaintiff was itself in breach of Ikarl’s invoice. Besides the 30% deposit to be paid to the defendant’s SCB account, the plaintiff was obliged to pay 100% of the plaintiff’s purchase price to other third parties (including 20% to Faylez) before any of the Gloves would be delivered.

108 The plaintiff’s recourse is to sue Ikarl for breach of contract on Ikarl’s invoice; it does not have a claim in unjust enrichment against the defendant.

109 As for its remaining claims, the facts do not support the plaintiff’s claims for mistake of fact and conspiracy.

110 There cannot have been any mistake of fact in any case since the plaintiff was obliged under Ikarl’s invoice to pay and did pay, the 30% deposit into the SCB account of the defendant.

111 As for the claim in conspiracy, the requisite elements are set out in the case of EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 (at [112]) cited by the defendant, namely that:

(a) there was a combination of two or more persons to do certain acts;

(b) the alleged conspirators had the intention to cause damage or injury to the plaintiff by those acts;

(c) the acts were unlawful;

(d) the acts were performed in furtherance of the agreement; and

(e) the plaintiff suffered loss as a result of the conspiracy.

112 On the facts, none of the five elements are made out in this Suit. The plaintiff has not produced any evidence to rebut Dan’s testimony that he was unaware of Ikarl and that he did not know about the company until after the dispute arose.

113 It is all very well for Kadosh and Mckelvey to criticise Ikarl and/or Faylez after the event and label the people therein as frauds (see [85]–[86] above). The plaintiff had conducted company searches (known as SSM searches) on or about 22 April 2021 on Faylez in Malaysia. Mckelvey said those searches ⁹⁸ showed that for its financial year ended 31 December 2016, Faylez had retained earnings of RM61,386.00 or S$20,462.00 (at an exchange rate of RM3.00 to S$1.00). He opined ⁹⁹ that a company with this type of earnings could not have entered into the Faylez Agreement worth $986 million with the defendant and alleged the contract must be fake and made up by the defendant.

114 The court wonders why the plaintiff would ascertain Faylez’s financial health well after the claim arose when it was too late. Why did the plaintiff not conduct the SSM searches at the material time (July 2020)?

115 It is the court’s view that the plaintiff could or should have been more circumspect, before it made the remittance to the defendant’s SCB account. Had the plaintiff been more vigilant, it would have or should have noticed that Ikarl’s invoice was not even an acceptable commercial document. It is surprising that an experienced sourcing agent like Mckelvey or for that matter a businessman like Kadosh could accept an invoice in the manner prepared by Ikarl. The document contained the figure “5,00,000” as the quantity instead of 500,000 boxes and the total price was stated as 33,25,000 without even a currency denominated. Furthermore, the invoice contained clear and obvious spelling and grammatical mistakes, most egregiously of Ikarl’s own name. The court sets out a few examples below:

Such an amateurish or badly drafted document should have put the plaintiff on guard.

116 Instead, the plaintiff threw discretion to the winds in its eagerness to secure a supply of the Gloves to fulfil the eight purchase orders it secured from Hotel Emporium and for Hotel Emporium in turn to perform the eight back-to-back purchase orders of Home Depot. It seems to the court that the plaintiff was the author of its own misfortune and loss.

117 In regard to costs, the defendant had written a Calderbank letter (see Calderbank v Calderbank [1975] 3 All ER 333) to the plaintiff on 16 June 2021 offering to accept a sum of $60,000 from the plaintiff in exchange for discontinuance of this Suit with each party bearing its own costs. According to the exchange of correspondence between the parties that the court has seen, the Calderbank offer was rejected by the plaintiff on 6 July 2021; it counter-proposed mediation instead. The plaintiff’s counter-proposal was rejected by the defendant on 14 June 2021 (the date is an obvious mistake and should be 14 July 2021 instead). On 28 July 2021, the plaintiff’s solicitors inter alia wrote to the defendant’s solicitors as follows:

118 The above proposal was most absurd – it meant that the defendant was being asked to admit liability for the plaintiff’s claim and to consent to judgment on the same on top of which the defendant had to pay damages and legal costs. What room was there for the defendant to negotiate? It was an unreasonable and unacceptable proposal.

119 It was a most unreasonable proposal because the defendant had in the Calderbank letter referred to this court’s decision on 27 May 2021 when, in dismissing the plaintiff’s injunction application, the court informed parties that the plaintiff had sued the wrong party (see [41] above). This is also the basis for the dismissal of the plaintiff’s claim here. Further. in Dan’s AEIC, ¹⁰⁰ he affirmed that the plaintiff had sued the wrong party.

120 Consequently, in the defendant’s closing submissions, ¹⁰¹ it submitted that this Suit ought to be dismissed with costs on an indemnity basis to the defendant.

121 In the light of the reasons for dismissing the plaintiff’s injunction application and this Suit as well as the plaintiff’s totally unreasonable conduct in [117], the court is of the view that the defendant is entitled to its costs on an indemnity basis from 28 July 2021 onwards. Its entitlement to costs prior to 28 July 2021 would be on a standard basis.

122 Consequently, the plaintiff’s claim is dismissed with costs to the defendant to be taxed on a standard basis before 28 July 2021 and on an indemnity basis thereafter, unless otherwise agreed.